Corrie family asks court to reinstate case against Caterpillar

Associated Press9 July 2007

SEATTLE (AP) - The family of a woman killed trying to prevent the demolition of a Palestinian home in 2003 asked a federal appeals court panel Monday to reinstate its lawsuit against Caterpillar Inc., saying the company knew bulldozers it sold to the Israeli government were being used to commit human rights violations.

Judge Michael Hawkins asked Justice Department lawyer Robert Loeb to consider the hypothetical case of a U.S. oven manufacturer during World War II: If the company continued selling ovens to Germany, knowing they were being used to kill Jews, would there be legal grounds to go after the company?

Yes, Loeb replied - treason, for starters.. But Israel is a US ally..

"Caterpillar sold this product knowing - or it should have known - it would cause exactly this harm," one of the family's lawyers, well-known Duke University law professor Erwin Chemerinsky, told the three judges from the 9th U.S. Circuit Court of Appeals.

Rachel Corrie, a 23-year-old peace activist from Olympia, was crushed by a 60-ton Israeli bulldozer as she stood before a Palestinian home in the Gaza Strip. Her parents, Cindy and Craig Corrie, sued Peoria, Ill.-based Caterpillar, which manufactured the bulldozer, seeking to hold the company civilly liable for aiding and abetting human rights violations - the destruction of civilian homes.

Four Palestinian families whose relatives were killed or injured when the Israeli Defense Forces flattened their homes joined the Corries in filing suit.

A U.S. District Court judge in Tacoma dismissed the lawsuit in 2005, agreeing with the company's argument that it wasn't responsible for how the Israeli army used its product. The family's request to have the case reinstated drew dozens of protesters to the courthouse, some carrying black silhouettes of Corrie and others holding a painting of a diminutive figure standing before an oncoming bulldozer.

Chemerinsky insisted that the judge applied the wrong legal standard, and that as long as the company knew how the bulldozers were being used, it can be held liable under common law dating back centuries. The case should be sent back to the lower court for further proceedings to determine what Caterpillar executives knew, he said.

Rachel Corrie

But lawyers for Caterpillar and the U.S. Justice Department, which filed a friend-of-the-court brief on Caterpillar's behalf, argued that letting the case proceed would require U.S. courts to improperly intervene in political issues reserved for the president and Congress. It would also require American judges to pass judgment on Israel's practice of demolishing Palestinian homes - "you can't aid and abet a legal activity," Caterpillar attorney Robert Abrams told the judges.

Abrams also said Israel purchased the bulldozers with U.S. aid, further complicating the issue.

"If your honors did look at the U.S. as paying for the bulldozer, the U.S. would be an aider and abettor as well," he said. "There is no conclusion that can be reached other than, it presents a political question."

Judge Michael Hawkins asked Justice Department lawyer Robert Loeb to consider the hypothetical case of a U.S. oven manufacturer during World War II: If the company continued selling ovens to Germany, knowing they were being used to kill Jews, would there be legal grounds to go after the company?

Yes, Loeb replied - treason, for starters.

But Israel is a U.S. ally, and "a U.S. court would have to opine on what really happened in Gaza and the West Bank," Loeb said. "This is a prime example of where the court should decline to extend its common-law jurisdiction. ... The financing and the sale of this equipment have been approved by the United States. (The plaintiffs) want to have a court second-guess the judgment of the government."

Chemerinsky and another Corrie attorney, Gwynne Skinner of the International Human Rights Clinic at Seattle University School of Law, described those issues as red herrings and said there is no evidence in the record that the U.S. did pay for the bulldozers or approve any transactions between Caterpillar and the Israeli government. They wondered aloud how the U.S. could finance Israel's acquisition of bulldozers while simultaneously decrying the demolition of civilian homes in the occupied territories.

"This is a case about direct commercial sales," Chemerinsky said. "It's about holding corporations liable when they aid and abet violations of human rights."

Corrie's parents said after the hearing that they have been carrying on their daughter's work since she died.

"You can't go back to the way things were before, so you determine a path forward," Cindy Corrie said. "Rachel left a very strong message about trying to make a difference on these important issues. This gives our life a lot of meaning."

The judges did not indicate when they would rule. The Israeli consulate in San Francisco declined to comment on case or the allegations of war crimes while the case pends.

"1763 in the Ohio river valley you got Lord Jeffrey Amherst committing to written order an instruction to his subordinate Henry Bouquet, having been defeated by Pontiac Ottawa confederacy in the field. The order essentially says that they have been defeated militarily and is therefore necessary for Amherst forces to request a peace, to sue for peace from Pontiacs people. He instructs Bouquet to convene a parlay with the Indian leadership for that purpose. And as is the custom, as is common courtesy among native populations as was known to the Brits at that time, it would be necessary for those who requested the council to give gifts to those requested to attend. Make those gifts, Amherst says, items taken from a smallpox infirmary in order, I'm going to quote directly now, this isn't a paraphrase: 'in order that we may extirpate this execrable race'. Now key is on this last word, had he said that we might eradicate the opposing combatants, their military capacity, their warriors.. what ever term he wanted to use, it would have been biological warefare. But he didn't say anything about that, he said the 'race'. His intent was to use biological means, to use disease, quite explicitly so, to eradicate an entire population group. And Bouquet was also kind enough to commit to writing in his response the next day, I have done as instructed, dispersing three blankets, two handkerchiefs and sundry other items, hopefully, he says, they will have the desired result. They did.. the lowest estimate of the number of people who died of smallpox as a result of that little gesture of friendship and goodwill is a 100,000!"